Wichita University of the Reformed Church in the United States v. Schweiter

The opinion of the court was delivered by Horton, C. J.: It is contended that the trial court committed error in permitting the defendants to introduce testimony to identify the subscription list donating money and land to the Wichita University of the Reformed church, and thereby tending to show that the written instrument signed by the defendants on November 22, 1886, was given as a guaranty of the performance of the terms of the subscription ; and it is further contended, that the court erred in construing the written instrument sued on in connection with the subscription as a guaranty or collateral agreement. It was claimed upon the part of the plaintiff that the instrument sued on was an independent agreement. - On the part of the defendants, it was claimed that the instrument was a guaranty or collateral agreement only, and that the subscribers had fully performed the conditions of the subscription in the time and manner set forth in both instruments, and therefore that they were not liable. Upon the issues of the case, we think the court committed no error in permitting the defendants to identify the subscription list, executed prior to the written instrument of November 22,1886, as the instrument or paper referred to in the guaranty or collateral agreement. The language of the writing sued on refers to what “divers persons had undertaken and promised;” aud this instrument guarantees that said sum “shall be paid in the time and manner above mentioned.” The evidence is uncontradicted that no other subscription paper was executed or signed than the one [678] referred to in the answer. The court therefore committed uo^material error in stating that the written instrument sued on was “in legal effect a guaranty that the persons who had theretofore agreed to contribute certain moneys for the erection of the university building of the Reformed church would comply with the terms of the subscription.” After the defendants had established by the evidence—as we think, conclusively— that the instrument sued on was only a guaranty to the subscription list, they then offered testimony that the parties signing the subscription paper had fully complied with the terms thereof; that C. C. Fees, who subscribed 20 acres of land, and H. L. Hill, who subscribed 10 acres of land, conveyed the lands in full satisfaction of their subscriptions. The plaintiff offered to show that the Fees and Hill lands were donated for a college campus, and not conveyed in payment of the subscription made by them, nor under the terms thereof. As the defendants were permitted to offer testimony tending to show that the parties on the subscription list conveyed all the lands therein stated to the plaintiff in satisfaction of the subscription, it was also competent for the plaintiff to show that the lands so conveyed were not in satisfaction of the subscription, but were transferred under a different agreement between the plaintiff and the parties making the conveyances. It is contended that the plaintiff was not permitted to show fully that such conveyances were made without any reference to or connection with the subscription. In answer to this contention, the defendants say that— “The plaintiff having repudiated the whole idea of the subscription being the original undertaking, and having from the first assumed that the subscription had no connection whatever with the instrument sued on, could not pursue the same line of evidence in support of its case that defendants pursued in making their defense. In other words, the theory of the plaintiff and that of defendants in relation to the construction of the instrument sued on being wholly different, it would be altogether proper for either party to pursue a line of evidence in support of its theory of the case which the other party, pursuing an altogether different theory, would not be allowed to offer.” [679] This is not a correct statement of the law as applicable to this case. Even if the written instrument sued upon was executed as a guaranty only, the plaintiff was entitled to recover any balance due thereon, unless the terms of the subscription had been fully performed. To defeat the plaintiff, it was not only necessary to show that the written instrument was a guaranty or collateral contract, but the defendants had to go further, and prove that the subscription had been discharged by performance. Of course, if the plaintiff accepted any money or any land conveyed in full discharge of the terms of such subscirption, it would be immaterial whether such subscriber had paid in full or not; but, in the absence of such acceptance and discharge, it would be incumbent upon the defendants to prove a full compliance by each party on the subscription list. This would include proof that the land conveyed was the same as that referred to in the subscription list, or that it was of the value therein stated. Therefore the plaintiff had the right to show that the land conveyed had no connection with the subscription alleged in the answer, and was made by the parties to the subscription list upon another or different contract. On account of the refusal of the court to permit the plaintiff to show fully that the conveyances of land referred to in the defendants’ testimony were not made on account of the subscription, nor with reference thereto, the cause will be remanded for a new trial. Johnston, J., concurring. Allen, J., not sitting.